Federal Court Rejects “Expert for Hire”
June 24, 2008
Matthew Singer - Chicago
Most attorneys are familiar with the four-factor Daubert1 test for the admissibility of expert testimony. A recent U.S. District Court opinion, however, appears to have added a fifth factor aimed at ferreting out the “expert for hire.” In Hayes v. MTD Products, Inc., 518 F. Supp. 2d 898 (W.D. Ky. 2007), the District Court for the Western District of Kentucky conducted the following analysis in ruling on a defense motion seeking to bar the testimony of an expert for the plaintiffs:
… [W]hether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying because the former provides important, objective proof that the research comports with the dictates of good science.
Hayes, 518 F. Supp. at 899-900. Partially based upon an analysis of this fifth factor, first identified in Smelser v. Norfolk South Railroad Co., 105 F.3d 299, 303 (6th Cir.1997), the court excluded plaintiffs’ expert. Id.
Expert Witnesses Are Not Always Unbiased
George Hayes died when a lawn mower he was riding rolled over and crushed him. Id. at 899. The plaintiffs filed a product liability suit against MTD Products, the manufacturer of the lawn mower. Id. They retained Stuart M. Statler, a former commissioner for the Consumer Product Safety Commission (CPSC),2 as an expert. Id. Statler opined that the lawn mower manufactured by MTD was defective since it did not include a rollover protection system/structure, which he claimed would have prevented Hayes’ death. Id. In turn, MTD filed a Daubert motion to exclude Statler’s testimony. Id.
Initially, the trial court conducted a traditional Daubert analysis, focusing on the four standard factors:
whether the expert’s theory can and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error and the existence and maintenance of standards controlling the technique’s operations; and (4) the extent to which a known technique or theory has gained general acceptance within a relevant scientific community.
Id. The court noted that Statler’s testimony failed to satisfy some of these factors. Specifically, he did not conduct any independent testing of rollover protection systems for lawn mowers, nor did he subject his theories to peer review. Id. at 900. Both of these factors, the court noted, suggested excluding Statler. Id.
However, rather than ending its analysis there, the trial court expressed concern that “expert witnesses are not ... always unbiased scientists because they are paid by one side for their testimony.” Id. (citations omitted). The court further elaborated that, where proposed expert testimony fails to flow “naturally from an expert’s line of scientific research or technical work,” but instead was “prepared solely for ... purposes of litigation,” it should be viewed with caution. Id. (citations omitted). In such situations, when an expert resembles the “quintessential expert for hire,” the expert must have some “extensive familiarity” with the product in question. Id. at 901. (citations omitted).
“Expert” Experience Should Be Specific
Statler had years of experience gained from consulting work and employment with the CPSC. Id. at 901. But this experience, indeed his entire “expertise,” was general, rather than specific to the product in question. Plaintiffs failed to provide proof that Statler was an expert in riding lawn mower safety or rollover protection systems. Id. Instead, Statler readily admitted to being an expert only in “consumer product safety generally, manufacturer and seller responsibility, and the consideration of dangerous products by the CPSC.” Id. Because he did not have experience specific to the product in general and because of his deficiencies under the more traditional Daubert analysis, the trial court excluded Statler’s testimony.
In the wake of Hayes, attorneys must be more vigilante than ever in selecting an expert. While no federal court opinion ruling on a Daubert motion has yet cited Hayes, attorneys are wise to consider its implications. Attorneys should not presume that because a proposed expert worked for a company or governmental agency that deals with a type of product generally, that expert would satisfy Daubert. If a proposed expert’s experience is only general, and she or he does not have experience specific to the product in question, that expert may be susceptible to exclusion.
For more information, email Matt F. Singer at matt.singer@hklaw.com or call toll free, 1.888.688.8500.
1 Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
2 The CPSC is a federal agency that works to ensure the safety of consumer products such as toys, cribs, power tools, cigarette lighters and household chemicals. http://www.cpsc.gov/about/about.html